Murphy v The Queen - [2005] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND
CA198/05
THE QUEEN
v
ALLAN TONY MURPHY
Hearing:26 October 2005

Court:Chambers, Williams and Rodney Hansen JJ
Counsel:M N Pecotic for Appellant

M D Downs for Crown

Judgment:23 November 2005

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS
(Given by Chambers J)
Importing methamphetamine
[1]       Vanessa Reynecke brought 650 grams of 77% pure methamphetamine into New Zealand on 9 May 2004. The drugs were concealed within a false lid in a suitcase. The method of concealment was such that initially the suspicious Customs officers could not detect the drugs even with the aid of an x-ray machine. It was only when a persistent officer drilled a hole in the lid that the drugs were discovered.
[2]       Ms Reynecke agreed to deliver the drugs as planned. She went to a hotel room, which the police wired for picture and sound. There she met her contact. That contact was Allan Murphy, the appellant.
[3]       The entire incident in the hotel room was videoed. There was a lengthy conversation between Mr Murphy and Ms Reynecke. It was clear to the trial judge, Simon France J, that Mr Murphy knew well the man in Bali who had given the drugs to Ms Reynecke for importation into New Zealand. Mr Murphy confirmed to Ms Reynecke that she would shortly be making a further trip. He advised her that, whenever she came to New Zealand, he would always be the one to meet her.
[4]       After this conversation, Mr Murphy attempted, unsuccessfully, to get the drugs out of the bag. The efficiency of the concealment, which had nearly thwarted the Customs officer, did defeat Mr Murphy. In the end, he decided to leave with the suitcase. At that point he was arrested.
[5]       Mr Murphy was charged with importing methamphetamine, a class A drug, and with possession of methamphetamine for supply. (The same methamphetamine was the subject of both charges.) He was also charged with conspiracy to import methamphetamine: the basis of that charge was the conversation with Ms Reynecke when Mr Murphy referred to plans for future importations.
[6]       Mr Murphy pleaded not guilty, but a jury found him guilty on all three charges.
[7]       Simon France J sentenced Mr Murphy to 16 years’ imprisonment on each of the importing and possession for supply charges. He sentenced him to five years’ imprisonment on a charge of conspiracy to import. The sentences were concurrent. Pursuant to s 86 of the Sentencing Act 2002, he imposed a minimum period of imprisonment of nine years.
[8]       Mr Murphy has appealed against his sentence.
Issues on the appeal
[9]       There are three issues on the appeal.
[10]     The first is whether the judge’s starting point of 14 years’ imprisonment on the importation charge was manifestly excessive. Ms Pecotic, for Mr Murphy, submitted that the starting point should have been no higher than 12 years’ imprisonment, the starting point adopted by Winkelmann J in R v Slabbert HC AK CRI 2004-092-7488 3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murphy v The Queen

Details

AGLC: Murphy v The Queen [2005] NZCA 283
Case: [2005] NZCA 283
Decision Date: 23 November 2005

CaseChat Overview and Summary

The appellant, Allan Tony Murphy, was convicted of importing methamphetamine, possessing methamphetamine for supply, and conspiracy to import methamphetamine. The appeal was against his sentence, which was 16 years’ imprisonment on each of the importing and possession for supply charges, and five years’ imprisonment on a charge of conspiracy to import. The sentences were concurrent, with a minimum period of imprisonment of nine years. The appellant argued that the starting point of 14 years’ imprisonment on the importation charge was manifestly excessive, the judge was not justified in adding two years’ imprisonment for the conspiracy charge, and that the judge should have provided a discount for mitigating factors.

The Court found that the starting point was not manifestly excessive. The judge had identified the relevant range as being 12-15 years and considered that Mr Murphy fell between the category of courier and ultimate organiser, with the consequence that he regarded Mr Murphy as "coming at the top of the second category identified in Wickremasinghe (para [25])." The Court then went on to flesh out what the increase should be for importation cases and adopted the following sentencing bands for cases involving the importation of methamphetamine: low level importing (less than five grams) – two years six months to four years six months imprisonment; importing commercial quantities (five grams to 250 grams) – three years six months to ten years imprisonment; importing large commercial quantities (250 grams to 500 grams) – nine years to 13 years imprisonment; and importing very large commercial quantities (500 grams or more) – 12 years to life imprisonment. The present case fell within band 4. The Court found that the starting point was not manifestly excessive.

The Court also rejected the appellant’s complaint that the judge was not justified in adding two years’ imprisonment for the conspiracy charge. The Court found that conspiring to import is in itself a serious offence, carrying a maximum term of imprisonment of seven years, and Mr Murphy’s role as "a high ranking trusted lieutenant" in that conspiracy justified the additional sentence to which he was subjected.

Lastly, the Court found that the judge was right to find that there were no mitigating factors. The factors submitted by the appellant did not represent a mitigating factor in drugs cases.

In conclusion, the Court found that none of the grounds of appeal was made out. The sentence imposed was not manifestly excessive, and the appeal was dismissed.

Orders